Senate Legal and Constitutional Affairs Committee
1 Executive Summary
1. The Australian Human Rights Commission makes this submission to the Senate Legal and Constitutional Affairs Legislation Committee, in response to its review of the Migration Amendment (Strengthening the Character Test) Bill 2018 (Cth) (Bill) introduced by the Australian Government.
2. The Bill proposes to amend the Migration Act 1958 (Cth) (Migration Act) to provide additional grounds for the Minister or his or her delegate to consider refusing to grant, or cancelling, the visas of non-citizens who commit certain serious offences. In his second reading speech, the Minister for Immigration, Citizenship and Multicultural Affairs stated that the Bill ‘strengthens the current legislative framework in relation to visa refusals and cancellations on character grounds’.
3. Currently, s 501 of the Migration Act provides for the refusal or cancellation of a visa by the Minister if a person does not pass the character test. The character test provisions are set out in s 501(6). In most cases, failure to pass the character test gives the Minister the discretion to refuse or cancel a visa. In some cases, failure to pass the character test results in a mandatory cancellation, with provision for the person to seek revocation of that cancellation.
4. One existing discretionary ground is that the person is not of good character, having regard to their past and present criminal conduct (s 501(6)(c)(i)).
5. The Bill adds a new discretionary ground to s 501(6) allowing the Minister or his or her delegate to refuse or cancel a visa if a person is convicted of a designated offence. Broadly speaking, designated offences are offences involving: violence against a person, the use or possession of weapons, breaching an apprehended violence order (or similar), or non-consensual sexual acts. The offence must be punishable by imprisonment for a maximum term of not less than two years. However, a person will fail the character test if convicted of one of these offences, regardless of the length of any sentence imposed.
6. The Commission acknowledges that the Australian Government is entitled to place conditions on the grant of visas—including that visa holders abide by Australia’s criminal laws. Some visa cancellations on criminal grounds are proportionate to legitimate public objects and are consistent with Australia’s international human rights obligations.
7. The decision to refuse or cancel a visa can, however, have a serious impact on the affected person and members of their family. In some cases, there can also be an impact on the broader community. This is especially the case for those persons who have been present in Australia for a long period of time, but who are not citizens. Removing these people from Australia will have significant personal impacts. It may result in people spending significant time in immigration detention, being removed from the only country they have known, and it may result in families being split up.
8. Given the potential impact on individual rights, it is important that any decision to refuse or cancel a visa is properly made, takes into account all relevant circumstances, and is a proportionate restriction of the human rights of people negatively affected by the decision.
9. The Commission queries whether the Bill is necessary and justified, particularly in light of the grounds already available for visa refusal and cancellation under the Migration Act. Further, the Commission is concerned that the introduction of another broad discretionary power, without due regard to the particular circumstances of each case, may result in arbitrary and disproportionately harsh visa refusal and cancellation decisions.